The Gore Case: Klutziness Is No Crime

By Elizabeth Drew

Thursday, September 18, 1997; Page A21

Hang on a minute.

The rush of opinion that an independent counsel should be appointed to investigate the fund-raising phone calls Vice President Al Gore made from the White House is ill-considered and even dangerous. But Washington is from time to time overtaken by an excitement detached from reason or logic, and that appears to be where we are now on the Gore matter.

The proposition that the vice president might be subject to criminal prosecution because he made fund-raising calls from the White House, and, whether he knew of it or not, the Democratic National Committee allocated some of this money to its "hard money" account, is absurd. (Hard money is limited under federal law and goes directly toward federal campaigns. "Soft money" is unlimited funds from individuals, as well as corporations and unions  neither of which is supposed to make a direct contribution to a federal campaign  and is supposed to go toward nice "party-building activities.")

Soft money is at the heart of the Clinton scandals. But since soft money is easier to raise in large amounts than the limited hard money, the DNC was under pressure to obtain more hard money, which is still necessary for certain purposes  even though both political parties in 1996 virtually obliterated the distinction between what hard and soft money were used for.

Gore is in this mess because of Attorney General Janet Reno's cockamamie legal interpretation that soft money isn't covered by the Federal Election Campaign Act. Of course it isn't, because it's a loophole (created by the ever-helpful Federal Election Commission)  one that has led to serious abuses of the campaign finance laws and needs to be closed. Under the Reno theory (with which her former deputy, Philip Heymann, has publicly disagreed), even foreign contributions might not be illegal.

So, when the news came a couple of weeks ago that some of the money Gore raised was put into the DNC's hard money account, the attorney general, having boxed herself in, announced that she was commencing the process that could lead to an independent counsel for the vice president.

But the circumstances don't fit the law he supposedly violated. The purpose of the Pendleton Act, passed in 1883 after a disappointed seeker of a patronage job assassinated President James A. Garfield, was to establish a civil service system that would, among other things, protect government workers from shakedowns by their bosses. It therefore barred the solicitation of campaign funds at the office. When it was passed, the telephone had only recently been invented. Whether the law applies to the president and vice president is ambiguous, as is whether the law applies to solicitation  by phone or whatever  of someone not on federal property. Moreover, this part of the law has never been enforced. (Gore thus actually had a stronger argument than his unfortunate "there is no controlling legal authority" in his March 3 press conference about the calls.)

Setting an independent counsel on a vice president for a test case of such a minor deed seems an odd use of the independent counsel law. In fact, after a special prosecutor (as they were called then) was appointed to look into whether Carter adviser Hamilton Jordan had used cocaine (insufficient evidence was found to seek an indictment), the law was changed to stipulate that such an appointment should not be made for a possible violation of the law that the Justice Department doesn't regularly enforce.

And appointing an independent counsel in this instance conveys no sense of proportion. Do members of Congress really think that their colleagues who don't leave their offices to make such calls  most do, as Gore, a former member of both the House and the Senate, had to know  should be prosecuted?

The Gore case typifies a tendency, in looking at the campaign scandals, toward legalisms that miss the point. Whether John Huang, at one White House coffee  out of 103  urged people to give financial support to the president's reelection race, a matter examined in the Thompson hearings this week, is another example. It's well established that many attendees were urged to give $50,000 before or after the coffees. What is the moral difference? It is this tendency that has brought to us the novel concept, put forward by the Clinton White House, of events for the purpose of raising funds that weren't fund-raisers. This explanation has been profferred also for Gore's famous visit to the Buddhist temple.

The real point is that, however the law is interpreted, Gore shouldn't have been making the calls  not from his office, not from a pay phone on Pennsylvania Avenue, not from his residence and not for soft money or hard money. Neither should the president or the first lady, who may also have made such calls. (Could Gore say "no" if his boss was doing it?) Calls from the highest officials in the land, with the power to affect all sorts of matters, have too much an element of shakedown.

True enough, Gore has handled the controversies surrounding him  the calls, the visit to the Buddhist temple  in a klutzy manner, causing him thus far nearly as much grief as the acts themselves. But klutziness isn't a federal crime.

Elizabeth Drew's latest book, "Whatever It Takes: The Real Struggle for Political Power in America," deals with recent campaign finance abuses.